^* United States Attorney at the time the brief was filed.

^** Judge Leventhal authored this opinion but died before it was released.

^*** Sitting by designation pursuant to 28 U.S.C. § 292(a).

¹ Amid Curiae briefs were submitted by the International Bank for Reconstruction and Development and the Inter-American Development Bank, the International Telecommunications Satellite Organization, the United Nations, and the United States.

² Joint Appendix (J.A.) at 48-50.

³ The amounts of the indemnities ranged from $9,000 to $12,000 plus attorney's fees.

⁴ J.A. 26-27.

⁵ J.A. 48-51.

⁶ J.A. at 50.

⁷ 22 U.S.C. § 288a provides:

International organizations shall enjoy the status, immunities, exemptions, and privileges set forth in this section, as follows:

(a) International organizations shall, to the extent consistent with the instrument creating them, possess the capacity—

(i) to contract;

(ii) to acquire and dispose of real and personal property;

(iii) to institute legal proceedings.

(b) International organizations, their property and their assets, wherever located, and by whomsoever held, shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments, except to the extent that such organizations may expressly waive their immunity for the purpose of any proceedings or by the terms of any contract.

(c) Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable.

(d) Insofar as concerns customs duties and internalrevenue taxes imposed upon or by reason of importation, and the procedures in connection therewith; the registration of foreign agents; and the treatment of official communications, the privileges, exemptions, and immunities to which international organizations shall be entitled shall be those accorded under similar circumstances to foreign governments.

⁸ 28 U.S.C. 3 1330 provides:

Actions against foreign states.

(a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.

(b) Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.

(c) For purposes of subsection (b), an appearance by a foreign state does not confer personal jurisdiction with respect to any claim for relief not arising out of any transaction or occurrence enumerated in sections 1605-1607 of this title.

⁹ 28 UJS.C. § 1331(a) provides:

Federal question; amount in controversy costs.

(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.

¹⁰ By Executive Order 10533 (June 3, 1954), 19 Fed. Reg.3289 (1954), President Eisenhower designated the OAS an international organization entitled to the privileges and immunities conferred by the IOIA.

¹¹ The legislative history of the Act makes clear the Act was passed to fill a then existing void in our domestic law with respect to the legal status of international organizations. H. Rep. No. 1203, 79th Cong., 1st Sess. 2 (1945).

¹² See, e.g., the “Tate Letter,” 26 Dept. State Bull. 984-85 (1952), quoted in Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 711 (1975).

¹³ Sands (ed.), SUTHERLAND STATUTORY CONSTRUCTION §51.08 (4th ed. 1975).

¹⁴ 28 U.S.C. § 1603 (1979) provides:

§ 1603. Definitions

For purposes of this chapter—

(a) A “foreign state” except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

(b) An “agency or instrumentality of a foreign state” means any entity—

(1) which is a separate legal person, corporate or otherwise, and

(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (d) of this title, nor created under the laws of any third country.

(c) The “United States” includes all territory and waters, continental or insular, subject to the jurisdiction of the United States.

(d) A “commercial activity” means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.

(e) A “commercial activity carried on in the United States by a foreign state” means commercial activity carried on by such state and having substantial contact with the United States.

¹⁵ 28 U.S.C. § 1611 (1979) provides in pertinent part:

… the property of those organizations designated by the President as being entitled to enjoy the privileges, exemptions, and immunities provided by the International Organizations Immunities Act shall not be subject to attachment or any other judicial process impeding the disbursement of funds to, or on the order of, a foreign state as the result of an action brought in the courts of the United States or of the states.

¹⁶ According to the House Report:

The purpose of this section is to permit international organizations designated by the President pursuant to the International Organization Immunities Act, 22 U.S.C. 288 et seq., to carry out their functions from their offices located in the United States without hindrance by private claimants seeking to attach the payment of funds to a foreign state; such attachments would also violate the immunities accorded to such international institutions.

H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. 30 (1976). The Report continues, even more pointedly This reference to “international organizations” in this subsection is not intended to restrict any immunity accorded to such international organizations under any law or international agreement.

Id. at 31.

¹⁷ 22 U.S.C. § 288a(a) (1979).

¹⁸ S.R. Rep. No. 861,79th Cong., 1st Sess. 2 (1945).

¹⁹ See 91 Cong. Ret. 12, 432 (daily ed. Dec. 20, 1945) and 12,530 (daily ed. Dec. 21,1945).

²⁰ Prior to its modification, the absolute immunity of states was justified by “the desirability of avoiding adjudication which might affront a foreign nation and thus embarrass the executive branch in its conduct of foreign relations.” See Hearings on H.R. 11315 before the Subcommittee on Administrative Law and Governmental Relations, House Committee on the Judiciary, 94th Cong., 2d Sess. 29 (1976). As sovereign nations become more and more involved in the market place, as merchants rather than sovereigns, claims arising out of commercial transactions do not affront the sovereignty of the nations involved. Id. Recognition of this growing involvement in commercial activity was the basis of the movement to a restrictive concept. Moreover, most other commercial nations embrace restrictive immunity with regard to sovereigns. Thus, when our government and its instrumentalities are sued abroad in commercial litigation, the sovereign immunity defense is rarely available. H.R. Rep. No. 94-2487, 94th Cong., 2d Sess. 9 (1976). Congressional proponents of the restrictive immunity could thus indicate that use of the restrictive immunity concept would bring the United States into step with foreign nations. Id. at 54. But neither rationale for adopting the restrictive notion of immunity would seem tc apply to international organizations. Such organizations do not regularly engage in commercial activities, nor do other nations apply the concept of restrictive immunity to them. Cf. Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682,699-702 (1975).

²¹ 28 U.S.C. § 1605(a) (1979) provides:

§ 1605. General exceptions to the jurisdictional immunity of a foreign state

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—

(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accord ance with the terms of the waiver;

(2) in which the action is based upon a commercial activity carried on in the United States by the shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.

²² See, e.g., Comment, The Jurisdictional Immunity of Foreign Sovereigns, 63 YALE L.J. 1148, 1161-62 (1954); Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 28 BEIT. Y.B. INT'L. L. 220, 225-26 (1951).

²³ H. Rep. No. 94-1487, 94th Cong., 2d Sess. 16 (1976) 'emphasis added).

²⁴ See e.g. XIII Documents of the United Nations Conference on International Organizations 704-05 (1945), reprinted in 13 Whitman, DIGEST OP INTERNATIONAL LAW 36 (1968).

²⁵ See e.g. OAS Charter, Article 143 (forbidding discrimination on the basis of "race, creed or sex"), Article 126 (requiring staff recruitment on as wide a geographic basis as possible).

²⁶ For example, the Age Discrimination in Employment Act of 1978, (ADEA) 29 U.S.C. § 621 et seq., forbids in most circumstances a requirement that a person retire at a particular age. Yet other countries consider early retirement an important social goal, the achievement of which facilities advancement by younger people. Since there is no inconsistent provision in the OAS Charter (and since, even if there were the ADEA was enacted after the latest amendment to the OAS Charter), the ADEA presumably would govern, and unless its provisions were construed not to cover international employment, see 29 U.S.C. §§ 630 and 633a, the OAS and other international organizations who are thought not immune from suit would be required to abide by the terms of the Act in their employment here.

Or for another example, the rigid quotas employed as an integral part of recruiting a “balanced” international civil service, see, e.g., General Assembly resolution 33/143, December 18,1978, might run afoul of the emerging law of “affirmative action” in the United States.

²⁷ Treatise writers on the law of international organizations have recognized the force of 'the argument made in text. See, e.g., M. B. Akehurat, THE LAW GOVERNING EMPLOYMENT IN INTERNATIONAL ORGANIZATIONS 12 (1967), which discusses suits such as the instant case in the following terms:

At first sight, disputes of this sort could be referred to municipal tribunals. The organization normally possesses immunity, but immunity can be waived. However, the special nature of the law governing employment in international organizations, closely linked as it is with delicate questions of administrative policy, makes municipal tribunals totally unsuited to deal with it. It would be like an English court trying to judge a dispute between the French Government and one of its officials. Courts in all countries usually refuse to handle questions of foreign public law, and, in the same way, a number of municipal courts have held themselves incompetent to judge claims brought by international civil servants against the organizations which employ them, not on the grounds of immunity, but on the grounds of the special law applicable.

There is therefore a vacuum which needs to be filled by the organizations themselves. The creation of an independent body, empowered to make binding decisions in legal disputes between an organization and its staff, is by no means an altruistic gesture from the organization's point of view; without it, officials might suffer from a sense of injustice which would impair the smooth running of the Secretariat.

The court notes that the OAS, like most international organizations, has established elaborate internal grievance machinery.